The legal consequences of the decsss case

Interview with axel horns: "the free public distribution of the weak cryptographic procedures must continue to be possible."

An interview with axel horns, mailing information technology and society (fitug), to the legal consequences of the decss falls and the question of how german judges decided in this case. One of the answers is that the reverse engineering of dvd-css software according to german law only for purposes of interoperability permanent goods. But the diekewelt of the decompilation paragraph of the copyright law adjusts at all over to the reality of the open source scene?

Is reverse engineering from software in germany legal?

Axel horns: reverse engineering of software through "decompilation" is in germany and — as this regulation has been harmonized from the eu — throughout the eu principle. That is the case, there are exceptions from the rule?

Axel horns: yes. But the exception is exclusively the production of interoperability with other programs. What does that mean for decsss?

Axel horns: here, this leads to a conflict between the legally fixed freedom of the builders of a dvd, freely freight in the framework of copyright survivors and use it, for example, using a free linux software, and the protection provided by law, as firmware in dvd players implemented technical mechanisms on the other. Dvd is about css that allows the media industry to keep the end customer effectively from the export of certain use of use. What to pay attention to the analysis?

Axel horns: one must distinguish two levels: either, on the one hand, the consideration of the factually given legal starting position and legal requirements and consequences on the other. First, it has to go around the given legal situation. What goal is the dvd lobby?

Axel horns: now the dvd case is primarily under the aspect of the production of interoperability: you might build a free linux dvd player, which plays dvds in particular without taking into account of regional codes. This is exactly what the media industry wants to prevent, as it sees a key prerequisite for the time-shifted global marketing of content in the regionalization of the dvd market. Since there are currently no laws that make the regional code implicit, this is intended to be enforced by technical means, just css. Is decsss for a piracy program, as the us plaintiff claim?

Axel horns: theoretically, the result of the dvd-css reverse engineering process theoretically beyond the production of interoperability can be used in addition to the production of interoperability to complete dvd-css-protected content and to copy to other media, for example, on the hard disk or on normal cds. Whether such a procedure for producing pirated copies in the current state of storage technology at all economically attractive, is on a completely different sheet. Is css a copy protection?

Axel horns: in the narrower sense, css is certainly not a copy protection. Because a one-to-one multiplication of a cap can be made everyone who has the corresponding dvd manufacturing technology without having to follow the content. There are already striking judgments?

Axel horns: also a current copyright law comment i do not have any case law on individual problems of software reengineering. This type of questionnaire has just not played such a rough role in practice. However, the comment emphasizes that the production of interoperability only the production of an interface of software for software, but not privileged between software and hardware. It also clearly emphasizes from the statutory word that the information obtained by the decompilation will be disclosed in this way in this respect, as it is necessary to achieve interoperability. A flat-rate publication of the result of a decompilation, for example, the internet therefore will probably be inadmissible. Goods decss in germany illegal?

Axel horns: first of all, it is first clear about the concrete case brought in front of the courts before the courts, that here a variety of individual factors in play, such as the exact course of reengineering work, who has made this in detail, and in which country, which is not yet lie on the table. Therefore, i can not say anything to the legal situation regarding the concrete decss case in germany. We only speak here about a hypothetical case, which is to be judged according to german law, and we can not pull it without further adversity about the intentional outcome of the legal disputes of the real case. What goods when the quite tight decompilation regulation in german copyright law was applied in the case?

Axel horns: then had an expert in germany who examined the firmware of a dvd player to understand the css mechanism rather bad cards — if he is not embarrassed in the production of interoperability with other programs. An interesting question here is how the dvd as such in hardware / software overall system is legally. According to the law, the decompilation of the right holder is not required only if the "translation of the code form", so the decompilation, is unasked to obtain the required information for making the interoperability of an independent computer program with other programs. It is important, however, that the information obtained thereby can not be used for other purposes than to make the interoperability of the independently created program. Also, you can not be passed on to third parties. What is the publication on the internet according to german law?

Axel horns: the question of whether one can apply the german right to an undeclared non-defined distribution of the findings obtained is very problematic. Now you can certainly argue that in an open source operating system such as linux the border between what you can and must be able to make interoperability is very difficult to achieve, and a legally inadequate distribution of decompilation knowledge beyond. Why?

Axel horns: here, the knowledge required for the production of interoperability is already exactly what is not to be distributed according to the will of the dvd consortium. Basically, the diekewelt of the decompilation prargraph of the copyright law law does not fit the reality of the open source scene. What are the legal consequences?

Axel horns: first of all, a sub-length claim and — in the case of intent or passengerity also — a claim for damages against those who have to answer for inadmissible reverse engineering is asserted. Is interesting if third parties can also be prosecuted that continues to forward the results of reverse engineering. Here are the civil liability to ask, a difficult and what the internet is concerned — controversial area. According to the copyright act, the rightholder was required that all unlabeled, widespread or unlawful dissemination of variety of multiplication matters were destroyed any means if it can be demonstrated that such a means "alone" it is intended to facilitate the unauthorized elimination or bypass of technical program protection mechanisms. Even a stucco software could possibly enter "middle" present in this sense. So a german judge could pronounce a ban on decsss-hosting?

Axel horns: it is not excluded that in extreme cases this provision may be tried to read that every copy of decss, for example, on any websites of third parties entails a destruction claim, so good goods. The restriction "alone" however, this may give rise to an increase in design whether the production of interoperability is not constituted a legitimate purpose. At what points may arise legal disagreements? Where there are gray zones?

Axel horns: it would be clear if the term "program protection mechanism" here overparts, because it is not one of the css "dongle". This term certainly not only includes copying mechanisms, but may also other program barriers, such as the provision of a secret subtlet, without the program run is not possible. But i’m planning more than a closer design. But as i said, for german conditions, this is still largely new territory. You had to probably also have different technically possible architectures for one "free" see linux dvd player to judge whether, for the concrete decss program, which is currently going on, among other things, a privilege in terms of enabling interoperability can give. What is your personal catch?

Axel h
i run premiums that the precondition for a destruction claim that it "alone" for illegitimate purposes serves, probably not to be involved. And one should not forget that a enforcement of such eligibility on the internet usually proves to be hopeless. How hours the opportunities then in an emergency?

Axel horns: came to a civil law complaint of the copyright owner at the firmware of a "legal" dvd players against a person who has executed a reverse engineering of this software, so his chances — at least at first glance — were not hopeless, if on the side of the one who has to answer for reengineering, errors have been made by which the limit of the permitted manufacture of interoperability is exceeded for other purposes … A heather fight was in any case, with uncertain output. Could be delivered like "shrink-wrap-performance" protect against unquenched reverse engineering?

Axel horns: i do not believe that this is enforceable in germany (bgb, gtc law). I have never bought a dvd player and therefore does not know if something sold in germany is tried overhead. What is the risk of people who have dedicated to reverse engineering?

Axel horns: there are virtually no striking case law in germany, from which one could really derive solid, which could play in the case of a case in front of german courts. Especially the copyright act, however, give me a moment to point out that the transmission of reverse engineering measures to software of all kinds and the other publication or distribution of reverse engineering results from all kinds of all kinds — in both cases as far as they fall the mab absolutely necessary for the production of interoperability with other software — a significant — is mainly civilian — risk. But it is not excluded that somewhere a public prosecutor’s office, for example, by § 202a of the criminal code ("speaking of data"), by criminal segregation in the copyright law or in the law against the unfair competition for intervention, could, if there was a corresponding case in germany. : reverse engineering is illegal even after the planned eu copyright policy?

Axel horns: the planned eu directive focuses on the wipo copyright tolerated and is currently not implemented in national law. If and as soon as the national implementation occurs, it becomes even more narrower for reverse engineering in the environment of copy protection and content caption systems. In plain text?

Axel horns: it should not be found that manufacturers of defective copy protection and rights management systems that are technically easy to break by the legislator will be privileged by the export of other rights, such as that of the free speech or the production of interoperability, is disclosed. Here a situation, in which the one who uses a cheap and bad technical system uses economically incomprehensibly committed to goods against competitors who do not shy away from costs and the fair, develop solid technology that can not be broken and that’s why a separate one legal protection actually not needed. The free public distribution of the weak cryptographic procedures must continue to be possible.